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Krishan Lal Vs. Sh. Ghaniya and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1977CriLJ1361
AppellantKrishan Lal
RespondentSh. Ghaniya and ors.
Cases ReferredD. N. Bhattacharjee v. State of West Bengal
Excerpt:
- .....the petitioner filed this complaint for offences under the aforesaid sections on 10-7-1975.4. the learned magistrate recorded the statements of the complainant and two other witnesses in support of the complainant, but he was not satisfied that there was any truth in the complaint. according to him, the statements of the witnesses suffered from lot of infirmities, inasmuch as there were material contradictions and, therefore, he dismissed the complaint under section 203 of the code on 22-9-1975. it is against this order that the complainant has filed this petition both invoking the inherent jurisdiction of this court as also by invoking the extraordinary jurisdiction under article 227 of the constitution.5. learned counsel for the state raised a preliminary objection that this revision.....
Judgment:
ORDER

Chet Ram Thadur, J.

1. This petition Under Section 482 of the Code of Criminal Procedure 1973 (for short, the Code) and under Article 227 of the Constitution of India has been filed by Krishan Lal for setting aside the order, dated 12-9-1975, whereby the complaint filed by him against Smt. Parvatu and 10 others Under Sections 323/504/506/430/ 147/149 IPC was dismissed. The petitioner has prayed for issue of a direction to the court below to proceed with the further enquiry of the case.

2. The complaint as filed by Krishan Lal is that there is a water channel which irrigates the fields of the petitioner as also of the respondents in village Khajrota of Tehsil Arki. The petitioner's father has got a right to the extent of half share for taking the water for irrigating his land, whereas the other half share belongs to the other co-sharers.

3. It is alleged that on 28th May 1974, the complainant had gone to his fields to water them. It is stated that while he was irrigating the fields, that in the meanwhile Smt. Parvatu one of the accused arrived at the scene and she diverted the course of the water of the channel. The complainant restrained her from doing so, but she did not abstain. On the contrary, she started hurling abuses on the complainant and in the meanwhile Ghaniya also came there and both the accused caught hold of the complainant and gave him beatings with fists and threw him down on the ground. Immediately after the other accused also arrived at the scene with a criminal intention to commit the offence and they also pounced upon him and that he was given severe beatings. After that on his cries his father, his mother and others reached there at the spot and extricated him from the clutches of the accused. Thereafter it is stated that he filed a report in the police station on 30th May, 1974. The police made an enquiry into the case but they did not put up the challan in the court. On the contrary, the accused persons who also apprehended that they would be prosecuted at the instance of the petitioner also filed a report with the police and in which the police after a probe put up a challan. Therefore, the petitioner filed this complaint for offences under the aforesaid sections on 10-7-1975.

4. The learned Magistrate recorded the statements of the complainant and two other witnesses in support of the complainant, but he was not satisfied that there was any truth in the complaint. According to him, the statements of the witnesses suffered from lot of infirmities, inasmuch as there were material contradictions and, therefore, he dismissed the complaint Under Section 203 of the Code on 22-9-1975. It is against this order that the complainant has filed this petition both invoking the inherent jurisdiction of this Court as also by invoking the extraordinary jurisdiction under Article 227 of the Constitution.

5. Learned Counsel for the State raised a preliminary objection that this revision petition was not competent, inasmuch as the petitioner failed to first approach the Sessions Judge because the revisional jurisdiction Under Sections 397 and 398 of the Code is concurrent both of the High Court and the Sessions Judge. Therefore, in these circumstances the petitioner should have in the first instance approached the Sessions Judge and not come direct to the High Court and hence such a course was not warranted and he placed reliance on Gulam Ah v. State 1972 Cri L.J. 551 (Him Pra), and Vijay Pat v. State through Delhi Administration Delhi 1972 Cri. L.J. 543 (Delhi). There can be no dispute with the principle laid down in these authorities, but the instance case is a petition not Under Sections 397 and 398, rather it is a petition Under Section 482, and Article 227 of the Constitution, and, therefore, this preliminary objection is misconceived.

6. Shri Bhawani .Singh learned Counsel for the other respondents also raised a preliminary objection to the effect that this petition was not maintainable in view of the specific provision in the Code, i.e. Section 398 which provided for the exercise of power by the High Court or Sessions Court and to direct any Magistrate to make further enquiry into the complaint which has been dismissed Under Section 203 or Sub-section (4) of Section 204 against any person accused of an offence. He also has relied on a number of authorities to substantiate his point of view.

7. The first authority, on which reliance is placed is Emperor v. Sukb Dev AIR 1930 Lah 465 : 31 Cri LJ 482 which says :

The special jurisdiction recognized by Section 561-A can be invoked only in excepitional cases for which no express provision has been made by the Code, and to redress only such grievance as calls for an immediate relief, which can be granted only by the High Court. The inherent jurisdiction should be exercised with due care and caution and must conform to sound general principles and precedents. It was never contemplated by the legislature that the High Court should exercise its inherent power for making pronouncements upon questions of law in order to guide a Magistrate in conducting a preliminary enquiry.

The second authority is Bhup Narain v. State : AIR1952All35 . It was a case of conviction and the applicant who filed an application Under Section 561-A (of the old Code) for setting aside conviction, it was held :

The appellate Court will deal with the legal question and decide it according to law. The conviction is not to be set aside Under Section 561-A, Criminal P.C. and can foe set aside according to the regular procedure.

Here in the instant case the complaint has been dismissed Under Section 203 of the Code. The petitioner has challenged this order and he wants a direction to be issued as contemplated Under Section 398 of the Code to the Magistrate concerned to make further enquiry into the matter. Therefore, it is quite clear as has been argued by the learned Counsel for the respondents that there is a specific provision made in the Code for redressal of such grievance and if there is a special provision then recourse cannot be had to Section 482 of the Code, which applies only in cases where there is no special provision made in the Code. Therefore, the contention of the learned Counsel for the respondents appears to be quite correct. To the similar effect is the authority of Smt. Champa, etc. v. State of Himachal Pradesh ILR (1974) Him Pra 56. In R. P. Kapur v. State of Punjab : 1960CriLJ1239 it has been laid down :

The inherent powers of High Court Under Section 561-A, Criminal P. C. cannot be exercised in regard to matters specifically covered by the other provisions of the Code. The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage.

Therefore, what follows from this authoritative pronouncement of the Supreme Court is that if there is a specific provision made in the Code to govern trial of cases then resort cannot be had to inherent power of the Court Under Section 561-A (now Section 482) of the Code. The other authorities cited are also identical. Therefore, in view of a specific provision as contained in Section 398 of the Code it is not open for the petitioner to invoke the inherent power of the Court Under Section 482 of the Code and the only course open for the petitioner was to have filed a revision petition.

8. Learned Counsel for the petitioner contends on the basis of D. N. Bhattacharjee v. State of West Bengal : 1972CriLJ1037 that the order made by the learned Magistrate dismissing the complaint was wholly unwarranted, inasmuch as the contradictions pointed out by him are quite insignificant and minor. Those contradictions could not be taken into consideration at this stage nor it was possible for him to say that the proceedings cannot eventually terminate successfully in conviction. At the stage of issue of process what the Magistrate has to determine is not the correctness or the probabilities or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie case, on the assumption that what was stated in the complaint could be true. And further that the Magistrate is not debarred at this stage, from going into the merits of the evidence produced by the complainant. But the object of such consideration of the merits of the case, at that stage, could only be to determine whether there are sufficient grounds for proceeding further or not. And further that the mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. Such grounds may indicate the need for proceeding further in order to discover the truth after a full and proper investigation. However, a bare perusal of this judgment would show that this was a revision petition before the High Court. The High Court allowed that revision petition and directed a further enquiry without expressing any opinion on the merits of the prosecution case. In that case the name of one or two former employees of the company were mentioned in the pay sheets and the learned Magistrate while dismissing the case Under Section 203 of the Code gave the following reasons :

firstly, that the Company, which was admitted to be a going concern, must have had some of its own employees who must have been taken over by the Corporation in 1960 ;

secondly, that D. N. Bhattacharjee, at the time of his resignation on February 28, 1963, had handed over the records and account books of the Company to the complainant which fact indicated that he 'probably' did not know that any of these were forged or fabricated ; thirdly, that it was 'improbable' that the Corporation could carry on its business without its own employees ; fourthly, that evidence had not been led to show what enquiries were made to indicate fhat the names on the pay sheet were fictitious ;

fifthly, that the complainant had himself admitted that one or two persons shown in the pay sheet might have been employed by the Corporation and that this 'demolished'1 the whole prosecution case of fictitious entries ; and,

sixthly that the opinion of the Handwriting Expert 'does not appear to be emphatic' and was also not supported by 'sufficient reasons'.

Therefore, the High Court while accepting the revision petition observed :

Merely because one or two names of the former employees of the Company were mentioned in the pay sheets, this does not mean other fictitious payments were not made. The whole case cannot be held to have been demolished by that.

This authority, no doubt, deals with the scope of Section 203 but it is not applicable to the facts of the present case. In the case before us, it is not a revision petition, rather it is a petition Under Section 482 of the Code, read with Article 227 of the Constitution. There is a specific provision as contained in Section 398 of the Code and resort not being had to it this petition Under Section 482 of the Code read with Article 227 of the Constitution is not maintainable. Further, from the observations of their Lordships of the Supreme Court made in this case it appears that the facts as brought out on the record were such which did not justify the dismissal of the complaint Under Section 203, but the case before this Court would reveal that the evidence brought in this case is such which does not carry any conviction. The offence occurred on 28th May, 1974, whereas the complaint was made on 10th July, 1975, i.e. after about 13 1/2 months. No doubt, Under Section 468 of the Code there is a period of limitation provided and the offences complained against are such in which the offences are punishable with imprisonment for a term exceeding one year and in such a case the complaint can be filed within three years, but the fact remains that the evidence brought on the record is of such a nature which does not disclose sufficient grounds for proceeding further in the case. The complainant had, according to him, lodged a report with the police, but he did not care to know as to what was the effect of that for over a year and then he elected to file the present complaint. It is also manifest from the complaint itself that the accused persons had also lodged a report with the police and which the police had investigated and consequently a challan had been put up against the present petitioner, The petitioner thought it proper to file this complaint in order to make it a counterblast to the case put up by the police against him. Therefore, in these circumstances I feel that the learned Magistrate was justified in passing the order which is sought to be set aside by this petition.9. For exercise of the extraordinary jurisdiction of this Court under Article 227 of the Constitution the petitioner has to make out a case that the Magistrate had refused to exercise jurisdiction vested in him by law or that he had exercised a jurisdiction which was not vested in him so as to say that the order is really suffering from a legal infirmity whereby grave miscarriage of justice has been caused and, therefore, it is necessary to invoke and exercise the supervisory powers under Article 227 of the Constitution, But, merely because the Magistrate dismissed the complaint on the basis of the evidence before him although he may not have properly appreciated the evidence and this Court may come to a different conclusion on the basis of that evidence, will not be sufficient to set aside this order in exercise of the extraordinary powers under Article 227 of the Constitution.

10. In these circumstances, this petition, in my opinion, is not sustainable and I, therefore, dismiss the same.


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